Case review: Deprivation of Liberty
A Deprivation of Liberty (DoL) must be legally authorised, even if the person in question is living in their own home and using privately-paid carers.
The Court of Appeal handed down judgment in December in the case of Secretary of State for Justice v Staffordshire County Council & SRK. The appeal was brought by the MOJ after new duties were placed on local authorities by the High Court. They challenged the conclusion that councils should apply to the court to authorise a deprivation of liberty, even when they were not themselves providing or funding the care in question.
The DoL system cannot be used when the individual is not cared for or treated in a care home or hospital. If someone is deprived of their liberty in another setting, only the courts can authorise the regime of care or treatment. In this case, SRK lived at home with carers paid for from the damages received following a serious acquired brain injury. Who is responsible, then, for bringing such cases before the court?
The MOJ argued that local authorities do not have a duty to bring the matter to court when they are not directly involved in the care. Although the state has a duty to protect vulnerable people, they suggested it was satisfied by the civil and criminal justice systems, the existence of regulators such as the CQC, and by the ethical duty of care professionals to flag any concerns about a vulnerable adult.
The Court of Appeal did not accept this argument. The duty on the state to protect vulnerable adults is proactive: it is not enough to wait for any concerns of neglect or abuse to be flagged by a professional, it should be prevented in the first place. Also, the European Convention on Human Rights protects people lacking capacity from ‘arbitrary decision-making’ in relation to their care.
In order to ensure proper decision-making, therefore, cases of deprivation of liberty through private carers, even if in an individual’s own home, should be brought before the court. Local authorities should be aware of adults living in these circumstances; for example, they should be informed when a financial deputy is appointed, or when the court makes an award of damages following a serious brain injury.
Those working within care homes or hospitals will not be directly affected by this ruling, but it is worth considering at the point of discharge that, if an individual is returning to private arrangements at home which might amount to a deprivation of liberty, the local authority should be alerted.
The judgment also has a wider significance in its illustration of the seriousness with which the courts regard the care of vulnerable adults. Mr Justice Charles in the High Court came to his conclusion with ‘real reluctance,’ fearing that ‘a further independent check by the Court of Protection will add nothing other than unnecessary expense and diversion of public and private resources.’
The prospect of an even greater number of applications to the Court of Protection could only be justified by a real concern for the safety and legality of private care arrangements.
As for the future, the Court of Appeal hinted that these court applications would not be necessary if there were some ‘legislative and practical regime’ to provide ‘proactive investigation by a suitable independent body’ but accepted that this would have to be created by parliament. For now, the Court of Protection may get even busier, as the reach of the decision of Cheshire West is further extended, and those in their own homes cannot go overlooked.
For more information or guidance please contact:
Partner and Head of Healthcare – Providers
T. 020 7227 7282
Secretary of State for Justice v Staffordshire County Council, SRK and others  EWCA Civ 1317
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.